What is a Constitutional Right? by Professor Robert Leider

The word “right” may describe different kinds of legal relationships. Nowhere has the nature of rights become more confused than in the debate over the Second Amendment’s scope. On Friday, November 2, the First Circuit released its opinion in Gould v O’Leary, No. 17-2202, which upheld Boston and Brookline’s denial of licenses to carry firearms for personal protection to those who could not prove “good reason to fear injury” to persons or property. In reaching its decision, the First Circuit both assumed that the Second Amendment applied outside the home and found that Massachusetts had provided an adequate justification for denying this right to most people. The First Circuit’s reasoning followed similar decisions from the Second, Third, and Fourth Circuits. Together, these decisions raise a basic question: What does it mean to have a constitutional “right”?

One understanding is that constitutional rights imply that governments lack substantive power. On this view, “rights” are claims that individuals hold against the government, that the government cannot exercise its power to do certain things. (The Thirteenth Amendment’s prohibition of slavery applies to private action, but it is sui generis in this regard.) One can highlight many examples of this no-power approach. Those convicted of crimes have an Eighth Amendment right against the government inflicting “cruel and unusual punishments.” The Seventh Amendment prohibits the government from abolishing the civil jury. The federal government cannot violate these rights even if it could show significant benefits from doing so. Maybe torturing murderers would substantially deter murder. But no matter how compelling the government interest in protecting innocent life, the Constitution prohibits torturing convicted criminals.

A second possibility is that a “right” is a prima facie privilege. Under this interpretation, a right is not a restriction on substantive governmental power. Instead, it imposes a procedural hurdle. Before the government can use its power to trump a right, the government must provide a justification. The Fourth Amendment right against warrantless searches has this structure. In general, warrantless searches are presumptively unconstitutional. But if the government can provide a sufficiently strong justification, the courts will recognize a warrantless search as “reasonable.”

As it applies to the Second Amendment’s right to keep and bear arms, the courts are split whether the Second Amendment is a substantive restriction on power or merely a prima facie privilege. In Heller, Justice Antonin Scalia adopted the no-power approach. He wrote that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” The District of Columbia could not completely prohibit the possession of handguns in the home, whether or not the District could show that that policy had significant benefits. The DC Circuit used similar reasoning in striking down the District’s “good reason” requirement for licenses to carry pistols. That requirement, Judge Thomas Griffith explained, amounted to “a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs,” and thus, was categorically forbidden.

But most circuits have taken the prima facie privilege approach. The First, Second, Third, and Fourth Circuits have held that states may generally restrict people from bearing arms in public, even while accepting arguendo that the right to bear arms is not limited to the home. These circuits’ reasoning essentially goes like this:

Assume that the right to bear arms applies in public;

Find that the right to bear arms in public is outside the “core” of the right;

Apply intermediate scrutiny and hold that the government’s strong interest in preventing crime justifies the denial of the appellants’ right to bear arms in public.

The prima facie right approach is not limited to Second Amendment “right to carry” cases. The Seventh Circuit used a similar analysis in United States v Meza-Rodriguez, 798 F3d 664 (7th Cir 2015), which upheld the federal prohibition against the possession of firearms by aliens “illegally or unlawfully in the United States.” While the Seventh Circuit declared that undocumented immigrants were within the scope of “the people” protected by the Second Amendment, the Court held that Congress could prohibit all undocumented immigrants from exercising the right to keep and bear arms, including in their homes, because these immigrants “are difficult to track.”

This majority prima facie approach to the Second Amendment is incompatible with our constitutional framework. The Constitution allocates and restricts governmental power. Unlike the Administrative Procedure Act, the Constitution does not condition the exercise of power on providing adequate public reasons. As a corollary, the Constitution does not allow reasons—even good reasons—from overcoming affirmative restrictions on governmental power.

This is not to say that reasons are completely irrelevant. In some cases, the Constitution forbids the government from acting in certain ways based on specific reasons (for example, restricting the right to vote based on race or sex). And in the Fourth Amendment, reasonableness is in the definition of the substantive right. (Although even here, commentators have disputed whether “unreasonable” searches meant that courts would examine reasons or, instead, would define “unreasonable” by using preexisting common law rules.) But to reduce rights to prima facie rights, so that the government may defeat them with an explanation, is not to have any hard shield against the government’s exercise of power. And that definition of a “right” is a poor fit in a Constitution that speaks of allocating and restricting powers. In Gould, although the First Circuit “assumed” that the right to bear arms applies in public, a Massachusetts resident cannot simultaneously have a constitutional right to bear arms in public and be denied access to a license for bearing arms in public. The first is the denial of the second.

Making matters worse, courts adopting the prima facie rights approach do not require the defeasible reasons to be particularly strong. In the right to carry cases, these courts have uniformly found that prohibiting otherwise law-abiding citizens from carrying arms in public bears a substantial relationship to the government’s efforts to reduce crime. When the parties have conflicting evidence whether denying most citizens the right to bear arms in public reduces crime, these courts will simply defer to the legislature. And the Seventh Circuit has not even required the government to show that a gun control law will reduce violent crime. In Meza-Rodriguez, the Seventh Circuit “doubt[ed]” whether “unauthorized immigrants are more likely to commit future gun-related crimes than persons in the general population” but upheld the complete ban anyway because of concerns that some undocumented immigrants could evade police.

Nor is it adequate to contend, as these circuits have, that bearing arms in public falls outside the “core” of the right. Rights may be subject to more regulation at the periphery than at the core. In the context of the right to bear arms, the government traditionally has restricted arms bearing in public more heavily than in the home. Among the traditional restrictions, for example, are location limits, manner limits (such as prohibiting concealed weapons), and more stringent regulations on the types of arms that may be publicly borne. But in these cases, the real question is whether the relevant conduct is protected by the right to bear arms, not whether the conduct is within the core or periphery. At the periphery of a right, the government still cannot prohibit the right’s exercise. In the First Amendment context, this is what distinguishes pornography (at the periphery) from obscenity (outside the right). And there is no reason to believe that the Second Amendment operates any differently. Even if the First Circuit is correct that the right to bear arms in public falls at the periphery, the First Circuit’s decision leaves the vast majority of Massachusetts residents with no avenue to bear arms in public.

To be clear, I am not arguing that the prima facie approach to rights cannot have value when determining the scope of a right, especially at the margins. Applying some form of scrutiny, a court could rationally conclude that the Second Amendment does not prevent states from banning the possession of a weapon at a court or a school. But that use of intermediate scrutiny is different in kind. In those cases, courts would be determining whether conduct falls within the scope of a constitutional right. In the public carry cases, however, courts have assumed that publicly carrying firearms falls within the scope of the right, only to then balance the entire right away. A court cannot coherently pronounce the same conduct protected by a constitutional right and subject to sanction.

Now, one might object that this argument merely objects to the language used to frame the analysis. Instead of upholding the denial of a public carry license using the prima facie rights approach, the First Circuit could have simply held that the Second Amendment right to keep and bear arms applies only to the home. Functionally, the First Circuit’s analysis did just that. So does it really matter if a court adopts the prima facie rights approach or more explicitly states it holding?

I think it does. As Professor Richard Re has explained, lower courts may “narrow from below” when they disagree with a Supreme Court decision. The prima facie rights approach facilitates this. Circuits using the prima facie rights approach use doublespeak to avoid publicly articulating their true holding. In Gould, the First Circuit claimed that it recognized some right to bear arms in public. It thus attempted to avoid the criticisms it would have faced by explicitly limiting the right to the home. And yet despite nominally recognizing the right to bear arms in public, the court delivered a holding that made this right impossible to exercise. Narrowing from below is more difficult when a court has to honestly articulate the implications of its holdings.

Finally, I am not arguing in this post that the Supreme Court must recognize a right to bear arms in public. Many commentators have argued for or against the existence of such a right. My argument is more limited. Whatever the court decides on that issue, the one thing the Court should not do is to recognize a “right” that may be entirely defeated with a governmental explanation. That path would defeat the value of enumerating constitutional rights.

Professor Leider is an Assistant Professor of Law at Antonin Scalia Law School, George Mason University.